In this special feature of our podcast, you’ll hear the key findings of our recent study, The Impacts of COVID-19 on the Commercial Litigation Community, and insights from our panel of industry thought leaders including Nate Robson of The American Lawyer, Eilene Spear of The National Law Review, Rudhir Krishtel of Krishtel Coaching, Ty Sagalow, a commercial insurance expert and IMS Elite Expert and thought leader, and James Crane, Chief Revenue Officer of IMS.
Teresa Barber, IMS Consulting & Expert Services: All right. Welcome everyone to the Analysts’ Briefing. We’re going to be providing a view on the COVID-19 impacts on the commercial litigation community. And before we get started, we just want to walk through a couple of notes, give you some introductions to our panelists who will be joining us today. We have Eilene Spear. Morning Eilene. Eilene is Operations and Projects Manager with The National Law Review. She manages editorial and social media teams who publish articles on a variety of business law topics including tax law, employment law, cybersecurity, litigation and the business of law itself. Eilene is a go-to resource for law firm publishing clients and she also authors original content on issues impacting the legal industry. She’s a former journalist and educator and worked as an adjunct writing instructor at various colleges throughout multiple states and has an extensive writing resume herself covering topics including legal topics, including the newest trends in legal marketing and interviews with top legal professionals and notable court cases in pro bono initiatives. Welcome, Eilene.
Teresa: We also have Rudhir Krishtel joining us today. Rudhir is a Coactive Coach and Facilitator focusing on workplace wellness and intensity for big law firms and practitioners. As a former lawyer himself, Rudhir hosts workshops and coaches clients to identify the issues that hold lawyers back from advancing in their careers. Prior to becoming an executive coach consultant Rudhir practiced law for 15 years as federal clerk patent litigation partner at Fish & Richardson and later senior patent counsel at Apple. This led Rudhir to the Baptiste Institute where he trained as a yoga teacher and studied mindfulness and meditation through Warrior One. He’s a professional certified coach and uses this experience and his training to deliver support, thought leadership and guidance to the legal community. Welcome Rudhir.
Teresa: And we also have Nate Robson, litigation editor with The American Lawyer and ALM media. Nate is a Washington DC based editor who co-heads the American Lawyer Medias litigation desk. He works with a team of reporters writing for the New York Law Journal, The American Lawyer, The National Law Journal, Law.com and several other state and regional publications. His team covers litigation that encompasses intellectual property, mass torts, the insurance industry, government policies and regulations and other white-collar areas. He also worked as a reporter for daily and nonprofit news publications throughout New York, Iowa, Oklahoma, DC and other areas prior to joining ALM. Welcome Nate.
Teresa: And we have Ty Sagalow. Ty is an IMS elite expert who contributes thought leadership in areas including commercial insurance, professional liability and insurance standards. Ty is also a 37-year senior insurance executive veteran, 25 of which he served at AIG where he held various positions including Chief Underwriting Officer and general counsel of AIG executive liability, Chief Operating Officer of AIG business risk solutions and president of AIG product development. Following AIG Mr. Sagalow was Chief Innovation Officer of Zurich, North American and Chief Innovation Officer of tower group. Mr. Sagalow is the founding member of Lemonade Inc and its founding Chief Insurance Officer. Welcome Ty.
Teresa: And also joining us and facilitating our panel discussion today we have James Crane, Chief Revenue Officer for IMS Expert Services, a company dedicated to delivering consultative trial and expert services for the most influential global firms. James is a former commercial litigator himself who has worked on significantly high risk and enterprise level litigation for fortune 50 clients. And as an executive and business leader, he successfully led legal services firms to deliver best in class responsive solutions. Welcome James.
Teresa: And real quick James, we’ll be walking everyone through some of the data that we found. But we just want to make sure everyone knows we do have some ways as we work through all of the information and the discussion. If you have questions you can raise your hand. You can also enter questions into the chat. We’ll be monitoring that, and we have a dedicated email address you can see on your screen and you’re welcome to tweet us at expert services or use the hashtag provided for the conversation. And our panelists will be tweeting and discussing as well. If you’d like to tweet any of them, you can see how you can engage in the conversation. And with that James.
James Crane, IMS ExpertServices: Thank you, Teresa. Thank you everyone. I’ll just start by just letting everyone know that we’re very grateful to all the 402 respondents who participated and took the time to do this with us. We’re grateful to have this fantastic group of panelists with us today and grateful for everyone who was able to join and make the time to do it either today live or in any rebroadcast. We know that COVID is a very serious situation. It’s impacted tens of thousands of families in the US and around the world. The impact has been disproportionate in certain geographic areas and in vulnerable populations. And we all have teammates and clients and loved ones that have been affected, impacted. We recognize that COVID affects our health security, our financial security, and potentially societal security. And consequently, that’s a big part of the reason why we undertook this effort and I want to share these exclusive results with everyone here today.
James: IMS felt a special obligation in our position where we deliver expertise, whether it’s expert witnesses or trial and jury consultants. We have a trusted network of over 30 years of tens of thousands of attorneys that we’ve had the privilege of working with and wonderful expert witness partners. They were all asking questions, they were sharing opinions, they were seeking answers I think like everyone, so really it was our clients and expert partners that inspired us to conduct this survey so that we could hear from them and then share it out with everyone else. We hope that it’s going to be not only able to be informative but also that we get to share a critical sense of community in this time for all of us and in particular to those of us who serve in the commercial litigation space.
James: Certainly, everyone in attendance. I want you to take note of the names of the panelists because they are really brilliant people. They are among the very best at what they do. So great resource going forward. Our commitment today is to honor your time and reward your investment of time with insight and to leave you with something that you can apply in your personal or professional life. And we want it to always be in a place where we value you and the time that you spend with us. Finally, as an industry, as a society in our firms and our business, with our families and our lives, we have a lot of work to do. We know we do to get together and recover and I want us to be mindful of that and just do our part to inspire one another, to care for ourselves and to care for those folks around us.
James: The presentation today, Theresa touched on it. It’ll be in three parts. So the first look will be at the key findings that some of our teammates have been able to put together and their analysis thank you, especially thank you Clint for spending some time in there with us. He’s one of our jury consultants and then a brief run through of the individual survey responses. And then finally the best part, we want to hear the perspective of our panelists. So, with that, I’m going to spend just a little bit of time on the key findings and the individual responses. So, you can see that there were 402 respondents. So, there was a lot of thirst out there to learn and be heard and to see what everyone else was feeling. And it took place from April seven to April fifteen.
James: So, keep that in mind. This is really a snapshot. Obviously so much changes in the new cycle around COVID so lots of things have developed since then, but this was a point in time view of this population. We had a really interesting and diverse mix of attorneys from all different types and sizes of practice areas. The same can be said for the expert witnesses who were able to participate a very broad, diverse group of folks across many industries and disciplines. So just keep in mind it was a snapshot and really a great population to work from.
James: One of the key findings is that firm size matters a whole lot, our big firms had a couple, three takeaways here. They were not as concerned about their client’s ability to pay, they also expected that there would be more business as a result of COIVD. And then also had been able to take the steps to put together resources and establish things like a COVID practice group or other resources for their clients. On the other side you have the smaller firms who are a lot more sensitive to the impact of COVID and what was going on and the challenges. They were more likely to expect a decrease in business, be concerned about their client’s ability to pay and were not in a position to put together as many resources. Thank you, Teresa. That’s just fine. I’ll keep up with you if you’re not keeping up with me.
James: So again, with large firms, you can see that 70% of the Am Law 250, have put together, some of the respondents from Am Law 250 were put together, some form of COVID 19 practice group, very interesting of the Am law 100 respondents of 43% of them expected an increase in business, which is greater than the all attorney population. We also found that location really mattered and it makes sense because we know that in particular New York had a lot of a different type of response and some variants from the rest of the population and we’ve compared it here to California base, but 80% of New York based respondents expected to see shifts to virtual platforms. We all know that New York was being affected disproportionately and sooner in time than some other areas, 50% of New York firms did expect an increase in business.
James: So, both the firm size and the location really mattered a lot. And the demographics of the attorney respondents that looked a lot like this. It’s a pretty diverse group. We had about a third from Am Law 250, another portion from boutique and 27% from other private practice, different size and a few from in-house counsel. The practice areas that the attorney respondents served and was again, very broad, lots of different areas. You can see 40% of them chose to identify generally as commercial litigation. As far as the experts on population, really great representation of a lot of different industries. Certainly, of the thousands or couple tens of thousands of experts, partners that we work with. As a company we do a lot of intellectual property and patent work. So that’s not a big surprise for us to see a good representation there and we also do a fair amount around pharmaceutical, but it’s a really nice cross section of folks.
James: Displacement is certainly an issue. I can say for us at IMS we’ve had a distributed workforce, a hybrid workforce that was very capable working from home and very accustomed to it or working from the road. However, we did implement the week of March 15th a work from home policy across the company. So that was a big shift for us that week and what we found is we were watching what our law firms are doing is that 70% of our law firms particularly got reports back from Am Law 100, Am law 250, 75% of them also shifted their policy to a work from home policy during that same week. And that’s been one of the biggest disruptions that we’ve experienced is just the attorneys getting accustomed to something new and working from a different place. And that affected our ability to work with them and I’m certain their ability to serve their clients and so that was a big takeaway as well.
James: The dust is settled somewhat. So, I wouldn’t call it normal, but I think all of those are getting used to zooming one another. If we’re going to start using that as a verb, seeing folks’ children and the pictures of their children and their pets. I’ve learned that my neighbor apparently mows his lawn three times a week. I had no idea. I mean, I knew he had a nice lawn. I just didn’t know he was out there making that much noise that many times a week, right.
James: Experts were not as displaced at the same rate, only 81%. And I think that’s attributed to a couple of things many of our experts have very robust home offices set up and that’s where they normally would work from that happens a lot. They don’t get in office client visits and things like that so it’s not surprising, but you can see still the level of displacement is very high. Receivables disruption I think in every business we’re all going to be concerned about this and the greater sense of what’s going to happen with our economy. And there’s still a lot of uncertainty there, everyone’s going to be looking at their client’s ability to pay and we can see that 90% of attorneys that were at least a little concerned, that as a result of COVID their clients would become unable to pay.
James: That would be a big concern for any and all of us. So, I know that that’s somewhat higher than pre-COVID environment. Something to keep an eye on something that certainly will cause a lot of stress to the individuals and the firms and businesses involved. The rescheduling and disruption keep in mind that this is April 7th to April 15th. There has been guidance and things since then but from the attorney perspective, the question was “Have you had hearings, depositions or trials postponed or rescheduled due to COVID?” And 94% had indicated that they had and then 68% had most all or several. So, it was really impacting everyone’s ability to serve their clients and get into their workplace as it is the courtroom. I was a little surprised to see even 6% of, not at all, even at that point because so much had been shut down.
James: This question is what type of guidance have you heard from the courts regarding your cases? So again, this was a few weeks back and I think there was a lot of uncertainty still. I think we were all digesting a lot of information at that point, but you can see the types of responses, 40% had reported their entire dockets had been pushed back. I was interested to know that they were given guidance that it would restart in the same order. I haven’t seen that as profoundly stated anywhere that a particular court saying we’re going to do it in this order. I think that there’s still a lot of decisions that are yet to be made there. I’m not surprised to see the 29% very little guidance.
James: I can say that since this time, and more recently whenever we’ve conducted our analysis of what federal district courts are doing of the 89 Continental US or United States Federal District Courts, 87 of them have given some form of guidance, whether it’s general orders or something with regard to the duration of the suspension of in court proceedings, which is the public safety and public health concern and more than half of that group of 87 have pushed the date out beyond June 21. So that can give a framework to everyone that’s saying how long might this type of suspension of in court proceeding last. Also last Friday if anyone hadn’t noticed or you haven’t seen it yet, the administrative office of the federal courts released a memo to provide gating criteria and an approach to a four phase response that can help give the individual courts and even judges some guidance about how you would return, how you would reconstitute your dockets and things like that. So that’d be really helpful. I encourage everyone to take a look at that because I think that’s going to be the operating manual going forward.
James: There’s a couple of good quotes here. We had a lot of great responses and a lot of really insightful commentary and things like that. One of the things we saw around docket disruption was exactly that it varied a lot. So whether it’s a boutique firm or Am Law 250 firm there was a lot of variants about how courts were handling this back in that timeframe April 7th to April 15th courts and judges traditionally have a lot of discretion to handle their business the way they need to. And I think we are in a position now where we all recognize it’s not one size fits all. And so, I think the courts are just trying to adjust and do their best to serve all their constituents right now.
James: So, we also saw that 70% of attorneys at that time, have had at least one event moved to a virtual platform, which is really interesting. And I think this is a moment where there is some challenge to the orthodoxy that all legal professionals would have. And maybe all US citizens might have a preference for in-person proceedings, where you get a different dynamic than you would over a video or telephonic. So, 70% though had attorneys had to actually conduct it on a virtual platform even at that early time. So that’s kind of interesting. From the perspective of long run demand and what attorneys expect to see as a result of a COVID impact 47% said that they would expect less demand and then 29% had basically said more demand and then there’s that piece in the middle who are no change that’s how the attorney saw it.
James: We did ask questions around is COVID a recipe for complex litigation? Will it result in more complex litigation? And the question had two component parts to attorneys to say number of disputes and the complexity of the disputes. And so, the vast majority, the 71% did expect more disputes and more complexity to them, and asking the same question of experts, 43% said that they would lead to more disputes and more complex litigation. I think there was agreement among both those populations that generally speaking, it would result in more disputes and increase complexity. We did specifically also ask about case complexity as a single item or looked at it as a single item. And at that point in time, 55% of attorneys anticipated no real change, 37% thought it’d be more and 8% thought it would be less.
James: And that was kind of interesting just a real quick comment, I think that 55% saying no real change potentially that’s a result of their practice areas that they operate in. Some practice areas are going to be impacted and while others may not, but it was a little bit of a high number for me. All right. So, the question here for attorneys really had a lot to do. In what ways are firms trying to provide resources to their clients and this was a one of those multi pickers, so it allowed for multiple answers and so you see that 55% have a website or resource page, 55% provide briefings and articles, 40% as we mentioned before have a practice group already established even this early back in April seven, April fifteen. What we found was most of the firms, that were doing these things, especially the larger firms, were doing almost all of these things. So, it would be multiple ways that they were trying to get resources out in front of their clients. Well, this is the last slide of the individual responses.
James: So, if you would like to engage now during the live session or even later if you want to rebroadcast, you can see email up there, things you can catch up with this team later. Here’s your options. I am really excited. This is for me, the best part I do love the survey responses and the analysis, but this is the best part because I want to hear from our panelists and get their takeaway on these things, their reaction, their perspective. Nate, Eilene, both of you are prominent and national legal media and the last slide that we just saw was an indication of what the law firms are trying to do to respond to COVID and the resources that they were putting in front of their clients or the pivots they were making to try to respond to the COVID impact. I really would like to hear from both of you. And Nate you’re un-muted. So, I’ll pick you to start. But I want to hear what your COVID impact experience has been from your position in this national legal media.
Nate Robson, The American Lawyer: So, we’ve been seeing a lot of law firms just kind of proactively reaching out to their clients, kind of talking about, “Hey, this is what you need to do or here are some of the common questions.” So, the big one being like a couple of weeks ago, the act of God clauses and contracts, how would that affect you? I know Wilmer Hale is an example of that there was the force majeure. How does that actually tie to your contracts? Does COVID-19 really tie into it? Kind of speaking from another side of that too. My wife is a meeting planner, so I’ve had her across the table from me talking to her clients constantly about that question and hearing her talk to her company’s lawyers is about kind of, how does that tie in. A lot of them are just trying to get these common questions answered to clients out there. How is this going to affect you? How is this going to affect your business? And some of it too is trying to get out there proactively to do it instead of waiting for clients to come to them.
Eilene Spear, The National Law Review: Yeah, definitely. Ditto. I’m seeing a lot from the law firms we work with that are putting out lots of client alerts and blog posts about not only the force majeure and some of those business interruption clauses, but talking about employment compliance concerns and looking at their legislation and the various executive orders coming out of Washington and what companies need to do. And even on a city by city basis, we are seeing articles coming out of the Georgia reopening versus California and all of their local ordinances. So just a lot of firms trying to provide their clients with the information they need to be in compliance with all of these new regulations. And then also some analysis about how to maybe avoid problems down the road.
Eilene: Some of that complex litigation that people are anticipating, I’m seeing a lot of that too. The first step to avoiding it is to be in compliance and that kind of thing. So I’ve seen an increase in webinars, which I think the law firms are doing a lot more webinars to try to keep that connection and be top of mind with their clients and to provide the solutions to these questions that people are just, we’re in uncharted ground and people are really looking for answers.
James: I would agree with that. And one of the funny things I saw maybe a month ago is that one of the Walmart EVPs was talking about what they were selling. They were selling 600% more tops for clothes than bottoms because of all the Zoom conferencing. We’re getting a little feedback, so I don’t know if that’s me or others. Ty, I’m going to pivot to you here for a minute because we had mentioned provisions and the force majeure. We also know that you can’t shake a stick or swing a stick around and not hear someone talking about business interruption or business disruption insurance and things like that. And what does it mean now and how does this apply in a pandemic scenario. Love to hear your take on the presentation and what you just saw.
Ty Sagalow, IMS ExpertServices: Yeah, as an expert, so much of the survey results, ring true with me and the parts of it that I found to be most fascinating were the survey questions, dealing with the complexity of the issues and how the change of what we’re going through is going to affect litigation because it really deals with how we as attorneys and how we as experts react to this change. And to me I see this is an opportunity, opportunity for attorneys and opportunities as experts because there is always an opportunity when danger comes, and danger is always a result of chaos.
Ty: So, the statistic that said 71% of the respondents indicated that they see significant litigation, I think that’s 30% too low. Clearly there is going to be significant litigation and the 55% indicated, well it won’t affect me. I think your observation, James is correct. What that means is I have my practice; I’m not going to change my practice. So, this massive amount of new and complex and fascinating litigation that’s going to happen in the world, well that it won’t affect me because I’m not going to change. And that’s unfortunate, I see the statistic that says 8% of small firms are putting together a COVID-19 practice, only 8%. I’m a small firm. I’m one guy. I’m putting together a COVID-19 practice and when I think about the fact that, well how do you have time for that?
Ty: And I’m sympathetic small firms don’t really have time. But I remember about 35 years ago when I was a young lawyer at AIG and I missed a deadline and I had to go up to Hank Greenberg, the great CEO of AIG at the time. And I had to explain to him why I didn’t have time to do something. And I said to him, “Mr. Greenberg, there are only 24 hours in a day.” And he looked at me and said, “Maybe in your day.”
Ty: So, you find time to do the things that are important. So, there’s a lot of opportunity in there. If you’re an insurance guy like me, business interruption is one of many types of litigation that will be out there.
James: That’s great. Thank you, Ty. I’ll circle back to that too. But it’s just been too good of a setup not to go to Rudhir next because for one thing, I know that Eilene you were talking about what firms need to do to prepare in light of everything that’s going on and Ty you’re talking about the complexity. And in fact, the words that you’re using, I know that Rudhir was, noting it and it’s true. Opportunity will come from danger; opportunity will come from chaos. But there’s a level of anxiety and things and certainly, Mr. Greenberg’s comment to a young attorney about how many hours are in the day or 168 hours in a week, or how you might plan your life in order to serve AIG.
James: I think this audience in this group is I think very sensitive to that. And Rudhir you’ve done a great amount of work both with law firms and corporate legal departments around the balance and the quality of life, things like that. Wellness in particular, we definitely have a systemic challenge for all of us in this industry with COVID only enhances that. So I think my question, I’d like you to think about an answer Rudhir is What do you think that attorneys and law firms, corporate legal departments, what decisions can they be making right now that are going to be good for their business long-term as we get to something beyond this?
Rudhir Kristhel, Krishtel Coaching: Well, what Ty said really hits the nail on the head, which is, it’s fascinating to see these stats in front of us where everybody, both experts and lawyers anticipated increase in commercial litigation and yet feel like their practice is not going to be impacted or their work will reduce. And I think that’s just a really interesting pairing up of information. I think what I take from that and what we know about this whole experience has created a lot of unpredictability, a lack of a sense of control and social isolation. These are the things that are right for us to feel concerned, unsettled. And what happens when we are concerned and unsettled. We’re not thinking of creative business solutions, we’re not thinking ahead, we’re not able to root into the wise lawyer that we are. We’re actually on edge and we’re reactive and we’re feeling busier and we’re draining our energy.
Rudhir: I can imagine that people whose energy is drained, who are reactive and don’t feel settled are not able to think clearly about creative business solutions, whether you’re a large firm or a solo practitioner, I’m in the same boat as Ty. I noticed that everyone’s going through challenging uncertain times. What do I do the next couple of days I say, “Hey, I’m offering out free mindfulness sessions weekly.” I’ve been doing that for the last eight weeks, over a thousand attorneys and people from the legal community have attended these webinars and sessions. That’s being responsive to the moment saying, “I’m a small business, I’m a solo practitioner.” Put out one message and here’s a flood of reactions and responses. And I think law firms are even much better suited to be meeting their client demands in this moment. But if people are doing that from a place of reactivity, then the creative solutions aren’t going to come.
Rudhir: And I think lawyers are so adept at resolving problems for their clients. So, they’re used to their clients being in a state of stress and challenge and they’re here to meet their demands. What happens when our stress is doubled or tripled? What happens when we’re feeling like we don’t have control over a situation? We’re not able to predict the future. I think that increases our attention. And so long answer to your question, I think what law firms and legal departments can be doing is actually meeting the demands and the needs of their staff and their lawyers and finding ways to settle them down, finding ways to connect them with each other, finding ways to create connection amongst their teams, finding ways to offer our services that allow them to settle so they can root into that creativity that will allow them to provide more creative solutions for their clients and meet client demands.
James: Yeah those are great points Rudhir. I think one of the places you’re landing and when you say community, or we say bringing things together. One of the points that came out before when, Eilene, you and I were talking was this pressing need for a collaboration. I think, Ty, you mentioned the practice groups and how do you do that? And you’ve got a one-man practice group there. And coming together with us now is a sense of collaboration and community and what we’re doing today is a sense of collaboration and community. I think how we see in the larger picture, outside of legal what States are trying to do by assembling task forces, you can see it all over the country where you’ve got cross functional cross disciplinary folks from legal, from corporate, from government, from healthcare all trying to come together and say what is going to be the smartest approach if we try to reopen things and all that.
James: So, I think there is a lot of collaboration and I think that is going to be one of the things that we can come together about like you’re suggesting Rudhir is caring for each other, caring for your people within the firm. Eilene if you were to just speak a little bit about the importance of collaboration. You had a really interesting article that you wrote just a few years ago about the kind of what firms need to do. So maybe speak to that a little bit. And before we run out of time, I do want us to also talk then I’ll plant the seed. I do want everyone to give their thoughts about what they do see future wise type of litigation and things like that as well. But Eilene, I’d love to hear your take on collaboration as well.
Eilene: Going back and looking at the survey results and the ways that the law firms were responding. And so many of them have set up a COVID-19 practice group. And in my role at the National Law Review, I spent a lot of time on those COVID-19 resource pages and you can tell that they are pulling attorneys from different practice groups and they’re working together. I think looking at some of the complex litigation that some of the problems that are going to come out of COVID-19 that these law firm clients are going to have are going to require collaborative solutions. It’s going to require legal expertise across practice groups to effectively meet the need of the clients afterwards. And one thing that I’ve always been aware of is, and in speaking with experts like Heidi Gardner, law firm clients want that collaborative. They don’t want a legal solution; they want a business solution.
Eilene: And so much of the time that comes across practice groups. So I’m seeing COVID-19 as a real opportunity, Ty, for law firms to use to demonstrate their abilities to collaborate not only to their current clients, but to maybe other clients that they don’t have yet but would like to have or people they’d like to work with. So, the ability to come up with collaborative solutions is really going to be showcased as not only law firms kind of prepare for the upcoming challenges post COVID-19, and they confront those challenges. I think that’s going to be a really interesting way to see this play out.
James: Yeah, I think so too in legal and across all the spectrums. Nate in an earlier conversation that we had, you were pointing to some of the areas of change that are happening within law firms right now, part of it may be the struggle that some firms are going to feel with receivables or cashflow the concerns whenever contingent cases get hung up. And those contingent cases would typically be the cases that support the business of the firm. I think that there was a booming business and litigation financing that had a lot of traction and momentum, that is going to suffer from the same type of a credit crunch that we’re all going to suffer and so maybe you can speak to that type of a financial impact or what you see there.
Nate: Yeah, definitely. We’ve definitely seen from what the litigation finances have been saying, they’ve got more law firms coming to them looking for financing. They’ve also been putting out more guidance saying we need to do more due diligence to make sure anyone that we’re lending to can actually pay back the money that we’re giving them right now. So despite all the kind of praise for litigation financing, it’s really, they’re looking to maybe stamp down a little bit on it in terms of like some of the other areas that we’re seeing, we’re seeing I think it was a Georgia insurance practitioner, just a small guy, a single solo shop. He sent out an email, as soon as everything started shutting down, and was like, “Hey guys I know we aren’t technically going to court anytime soon, but now’s the time to start talking about settlements, let’s try to resolve our cases now instead of waiting two months for everything to open back up.”
Nate: And, he was talking about how you have people actually using that time that come to him and say, “Hey, how about we do this.” And we’re actually reaching a settlement that I think about for three cases. And we’re also seeing two kinds of future areas that we’ll be looking for. I know, at least in New York, I think kind of ties into some of the differences that we’re seeing in California, in New York and New York has been very proactive. New York state, if they’re very proactive, especially through this unified court system and kind of implementing the digital changes in the court system as opposed to in California.
Nate: And lot of the attorneys, they’re saying, no, this is kind of a pause right now. We are expecting as soon as things reopen, business will start resuming so a landlord tenant dispute. So, you’ll see those really pop up matrimonial cases those will start to resume and on the flip side, there are some other, I’d say areas that people are watching for concern. So one attorney was telling one of my colleagues, if you’re representing Uber or Lyft right now there a really great client, but their long-term viability to be able to pay you right now might be affected by their lack of actual business right now.
James: Points on Ty, I know you have quite a few thoughts around the different areas that are going to be exploding and facing new challenges with COVID. Just let it fly. Ty, let’s hear those thoughts.
Ty: Well in terms of litigation, there is going to be a slew of additional and fascinating litigation if you’re an insurance geek and maybe if you’re not. And I divide it in two different categories, insurance disputes and non-insurance disputes. In the insurance dispute area, the one that I sort of get around that even the guy that delivers the pizza may have heard of is business interruption. So typically, that’s your bookstore burns down there’s a fire and then you get money for the lost profits while you’re rebuilding the bookstore. So, the question is all these restaurants now are closed as a result of the virus. Is that covered under your business interruption policy? And literally there is hundreds of millions of dollars at stake at whether your property policy covers business interruption and there will be many court cases about that.
Ty: But they’ll also be other fascinating situations we were talking before about if Home Depot is open because they are regarded as an essential business, but they are selling a product which is not an essential product and the Mom & Pop store down the street is closed. And prior to being closed that Mom & Pop store was the biggest seller of that particular product. And now that Mom & Pop store can’t reopen because it just lost too much business. So, it’s sues Home Depot for an unfair business practice? Is that an unfair business practice legally? And if it is an unfair business practice, is that covered under a general liability insurance policy, which normally covers unfair business practices, but certainly never contemplated this. Mayors and Governors sometimes by something called public officials, professional liability, believe it or not.
Ty: That’s management liability coverage with people that are politicians. Well they have been opening and closing large parts of their state. What if they’re sued? That was something never contemplated by the people such as me who created public officials, professional liability. It is really going to be fascinating the number of cases of first precedent that will arise both in terms of whether it’s covered and whether the underlying liability even exists. And then the second part of your question, if I can just go on for a second, is what are the new opportunities? And that’s a great question because whenever there is something like this that fundamentally changes the economy, there are entrepreneurs that will be able to take advantage of this in a good way. So, for example, this change in the economy has resulted in a change in the methodology of capital raising.
Ty: Venture capitalists are no longer investing in startups. So, startups are now raising capital through crowdfunding. So, people that are now looking at that industry, the crowdfunding industry as something that will grow. So law firms are now pivoting their SEC practice groups to be able to advise more on regulation A and 506 C and even regulation CF, people like me that are in insurance are developing insurance products for crowdfunding in a similar way because of what’s happening in the market. There’s more interest in cryptocurrency. So now law firms are beginning to develop practices for legal issues arising out of Bitcoins and cryptocurrency. People like me are developing insurance products for cryptocurrency theft and theft of Bitcoins. So once again out of chaos there is opportunity.
James: Very good, Ty, thank you. Rudhir I do want to come back to you and I want to talk a little bit about a different kind of opportunity where we were talking about what we’re going to see in the marketplace what law firms can expect, where they can go. In the same way we talk about IQ and EQ, Emotional Intelligence, I’ve also heard of RQ, Relationship Intelligence. I’m wondering Rudhir what you might advise these attorneys at these firms that need to engage with their client.
James: If they’re not billing and they’re not maybe working on cases or there’s a pause in that. There’s still a relationship there and I’d love to hear your take on what kind of advice you could give to attorneys who have all of these existing relationships but don’t have that normal dynamic and pattern of what’s going to be happening to, I’m calling you about your case, I’m calling you about my invoice or whatever it’s going to be, counseling in that way versus helping in the relationship and what you can do as an attorney helping clients at this time. So, I’d love to hear your take on that.
Rudhir: Yeah, I think it’s actually an amazing time to focus and build relationships. I think when this happened and we naturally isolate, we think, well, I’m not able to take that client out to lunch or dinner after that meeting or I’m not attending a conference where I connect with them. It’s all of these business development opportunities go away, but I actually think the exact opposite is possible right now. I feel like relationships get built often when we are supporting someone else, when they’re supporting us through something or we’re enduring something together. Right now, we’re all enduring something together and there’s a real opportunity to support someone in your world, in your network, in your client base. It’s a great time to just reach out and say, “Hey, how are things going? How are you? I just want to check in. You got time for a 15-minute call I’d love to catch up and just see what’s going on.”
Rudhir: And I think part of what happens with business development is you want to get a sense and attune with what are the challenges that your clients are facing today, your business model and the services that you offer may have been attuned to what was happening in December or last March. And now the world has changed. And so, what great time to check in with your clients and say, “Hey, so what’s concerning you right now? What’s going on with you? Or what’s on your mind or what are the challenges that you’re facing?” And being able to first just hear that out helps build relationships. You don’t actually even have to solve a problem for a client, which is what lawyers think we have to do to build a relationship. Just being the listening ear goes such a long way in this moment because a lot of people don’t have that.
Rudhir: They’re confined with families around them and really no time for themselves. And so just being that person. We think about advice and counsel, here’s the part of our practice we want to think more about the counsel piece and the counselor piece. Just listening and paying attention to clients and what’s going on for them. I think it’s a great opportunity to build relationships. I have clients of mine and I work with a lot of attorneys and we’re brainstorming ways to talk about business development now I have a client that shipped a bottle of alcohol to a client and they’re getting on zoom and they’re sharing a drink over a video.
Rudhir: And I have people that are sending hot chocolate to share a hot chocolate moment with the families over Zoom. And so, they’re connecting in different ways. They’re finding different excuses to reach out and connect and build relationships. I think for those of us that feel like this is a bit of a hibernating period, it’s a great time to reach out through the video or over the phone and just start talking with people. Relationships for building business often have a cycle, a longer cycle than we think. It’s not just pitching a client and getting a case. It can be a two, three-year cycle. There’s no reason why you can’t continue to develop that relationship in this moment.
James: Yeah, that’s exactly right. I think that really resonates with me. I think a lot of about all of this, for all of us, it’s been a big reset. It’s been an opportunity where we might’ve had habits that we didn’t enjoy or that weren’t good for us and we’ve been able to break some bad habits and maybe started to foster some good habits. And I would hope that as a society, we can carry forward those good habits. And I think the things you’re mentioning, Rudhir just valuing the people and valuing the relationship is really critical. It’s not so much that it’s an attorney or it’s a client or it’s an expert, it’s people that we’re all people and valuing people is what’s going to have lasting and enduring effects. Another term I’ve heard used was enduring together is a great term, being in the trenches or foxholes is another one or even fellowship of suffering, right?
James: Because we’re all kind of having some common grievances like my neighbor mowing his lawn so much or something, you know things we get to talk about. But I think it’s just sharing that really helps. We’ve got just about maybe 12 minutes left and what I’d like to do all of you I know have notes and some other thoughts and before we wrap up completely, I’d love to just do one more cycle through, hear from you, Nate and then Eilene and Ty and Rudhir any parting minute, minute and a half of kind of the things that you think that this audience should take away or anything we didn’t get to yet. I’d love to just give you that opportunity Nate, I’ll start with you.
Nate: I’d say really the big thing is while firms just looking for opportunities to or proactively looking for opportunities to just continue working here, we’ve seen big law depending on the practice groups really saying, now’s the time if you want to do a pro bono project, think of a pro bono project you can still work even if your practice is running out of business. So Gibson Dunn for example, a whole bunch of big law firms is going to refocus on them primarily and The National Law Journal jumping into the immigration cases, trying to work with immigrants back in detention facilities, as COVID-19 is going around. Also too just proactively reaching out to your clients as Ty was kind of talking about, talking about their issues or problems or even reaching out to your opposing counsel, talk about how to resolve the case while things are going slow.
Nate: We’ve really been noticing too, just the courts trying to be responsive to people’s needs, or even trying to help with the new technology that they’re using. So, I think it was judge Melton in Georgia who came to us and said, “Hey, we’re going to do the first time here at the District Court in Georgia, our very first telephone conference that’s going to be open to the press. This is how people can participate and listen to it.” And really for areas like New York, it’s not a big deal or in DC that’s not a big deal, for places like Georgia, I’d say that it’s kind of a big deal. I’ve never done that. They’ve always been, according to some people, hard to monitor, up on the hill, up on Olympus.
Nate: No one really knows what’s going on there. They’re really taking that opportunity to open up the courtrooms to the public despite what’s going on. And then I’d really say the other thing too is just kind of looking at how of course of doing this differently, really the big takeaway on this was that New York is rather proactive as I mentioned earlier in terms of trying to address how they’re going to deal with COVID-19 in the court system. This is the New York state courts system. We’ve seen the federal courts really adapt well but California because it’s an un-unified system everyone’s doing their own thing. They had to go to the chief judge fair to ask for permission to make changes.
Nate: Then ultimately you just hit the point there from what I was told by my colleagues. Then it’s like the governor had to get involved. Like, “Hey this is an emergency. We’re going to implement a blanket system here let’s try to just get through this.” And hopefully we will see people kind of getting used to the new system now, once the emergency is over things will resume. I think that’s really the big takeaway we’ve been hearing too, is life will resume attorneys are just waiting for that opportunity, for some of the cases to really hit the dockets again.
James: Yeah. Very insightful. Thank you so much, Nate. Eilene please share.
Eilene: Some of these ideas of we’re in chaos. There are a lot of challenges, but I think there are really a lot of opportunities as well on the whole, I think we’re all dealing with these divisions that have sprung up we can’t go out, we can’t see each other, we need to stay in our homes. But in so many ways these barriers are breaking down. I’m thinking of some of the things Rudhir was saying about attorneys are at home with their families and they’re talking to their clients who are also at home with their family. So instead of just being sort of this businessperson and then keeping the family life separate, it’s all mixing and mashing together. So, I think we might have an opportunity here to sort of really connect with each other as our full authentic selves with all of the ugly pieces and mixed up pieces and not ugly, but just the messy pieces in the background.
Eilene: And I think that’s really a chance to maybe build a new normal. So, when things resume, we’ll have maybe a more holistic understanding and maybe it’ll be a little bit better. That may be very naive, but I think that if we’re going for opportunities out of challenges, I think looking at how we can respond and keep the good habits that we’ve built because of this and keep that part of it going forward. I think there’s really a great chance not only in business but in life in general.
James: Those are great points. Thank you, Eilene. Ty, I want to kick it over to you for your final thoughts on these things. I will remind one of the things we’ve talked about before, Ty that you shared, if it’s not in your notes right now and it may be of course, a little bit about this moment we’re in, there are a lot of deals. There were thousands of deals that were going to take place. PE back, but you mentioned VC, but there were a lot of deals and now all those deals they’re basically done because none of us can predict exactly what’s going to happen. It’s tough to value assets and things like that. So, I know you had mentioned that before when we’ve talked before, so maybe a touch on that too among the other things.
Ty: Yeah. Well, let me start with that. It’s a very good point. So, we had this way of raising capital, right? So, we had all these merger and acquisition deals that were in play. We had potential IPOs and the market went in and out and was unclear where it was prior to the virus. But a lot of people believed that it was beginning to come back. And then we had a very rich venture capitalist and private equity. And then the virus happened the market, obviously 2019 was very good market. FTP I think went up about 23 to 26%. And then in a matter of weeks, the market crashed. So that really impacted where people were going to spend their money and the valuation of stock and the types of M&A deals that were out there. And it heavily impacted private equity funds, heavily impacted family officers and venture capitalists, which made it very difficult for startup entrepreneurs.
Ty: Overnight they were having problems raising funds and getting their business started. Not to mention, what were you going to do when you were raising funds to build a new restaurant? What were you going to do when you were raising funds to start a new gym? So, they rushed to the crowdfunding market. They rushed to a regulation A, regulation CF. And that created opportunity for a new type of investor for the unaccredited investor and various risks associated along the line and opportunities along the line for law firms, for accountants, for advisors, for an investment advisor and for insurance folks such as me. And then the other final comments that I will make on a personal level is that this was scary, it was very scary to me. I’m a routine sort of guy, so I joke around that I went from a 15-minute commute to a 15 second commute and I liked the 15-minute commute a lot better.
Ty: And it took me a little while to get used to things. But I think we need them to know what’s most important is the health of everyone, especially the health of ourselves and our loved ones. I started getting into the habit of walking for 45 minutes for an hour every day. I never did that before. And I started losing weight. Who knew that exercise, you could lose weight? So, I’m hoping to keep that up when things get back. So, you try to remember the good things and the future well there’ll be more types of litigations for folks like me, new types of insurance products, new types of insurance disputes. But hopefully for everyone that’s listening to this webinar, new sets of clients and maybe most importantly, some new sets of friends and neighbors that we never knew existed. And if we think about that, we’ll get through with it.
James: Thank you, Ty, that’s right and there’s so much on there that I’m happy to turn over to Rudhir. The nature of us who like predictability. All the uncertainty out there Rudhir spend a couple minutes and bring us back to where we can get well again, not just serve well, but be well and get well.
Rudhir: Yeah. I think we’ve noticed it in the last many months especially those of us who are creatures of habit, that this big change and this big shift and the unpredictability and the uncertainty causes a significant energy drain. I have clients that regularly bill 13, 14 hours and at some point, they just said, I just can’t get past eight and a half a day. Like I just hit a wall and I’m not sure what’s going on. Well, this type of a change and this shift for all of us can invite in an energy drain. And so, what are the new habits? What are the new ways some of us keep thinking, when are things getting back to normal? There is an invitation to start letting go what we thought the world was and what we were really used to and start inviting in the new practices.
Rudhir: Ty goes for walks. I think that’s amazing, I think people just rooting into new practices that allow them to get comfortable with the shift, finding ways to create healthy boundaries between home and work, even though they’re all now in the same place. People that were used to a 15-minute commute now it’s 15 seconds maybe there’s a practice centering for a minute before you make that transition. Maybe doing a short meditation or something that allows you just catching your breath even something really simple before you make that shift from work and home and not allowing it to bleed together as much as you used to.
Rudhir: I think when we think about resilience, we want our resources to outweigh the things that are draining us and we keep things right here all the time, but we have things that drain us and we just maybe beat it with our resources, but everything that’s happened in the last couple months has really increased the amount of drain on our energy. So, we want to find new ways, different things and different habits that allow us to regain our strength, our energy, and our resilience. And so be curious about what those practices are.
James: Very good. Thank you, Rudhir. We did have one audience question that wanted to just to query the panelists about what they thought the long-term impact or usage or efficiency of some type of hybrid approach of in-person and virtual, if anyone would like to step up and give that a bit of a view.
Nate: Yeah. I saw that pop up. I was like typing up an answer over here in the margins. So yeah, I think we’ve been seeing more of new reports popping up to really help attorneys prepare for these types of sessions in places like Georgia this is hopefully a new experience for me as well. Just because they’ve never really had this type of format. The attorneys weren’t really prepared, I’d say is the best way to put it, to really jump into oral arguments where you’re talking to a judge and you’re sitting there, and it’s like alright which judge is talking to me, I can’t see their face, are they buying my argument? Are they thinking I’m full of it? What do I need to do? So, it was really like working with the attorneys to figure out how to actually handle everything in that.
Nate: And then two, people would love to see from what the attorneys have been telling me, they’ve been getting more used to the system and they love to see the courts, maybe keep some of these telecommute systems in place. Especially for the really short hearings some attorneys are like do I really need to fly to Miami from New York for a 15-minute conference? If we can do it by telephone, it’s really easy to even bring in the media. We’ve seen judges having, I can say technical snafus, but they’ve been getting ironed out of the DC circuit. When they have their first teleconference., judges kept talking over each other, judges were getting dropped in the conference. They just had the first online on Monday, under this new system and they ran a really tight ship.
Nate: They had a really specific schedule or rotation of how the judges would ask questions. No one got dropped. It was a completely different system. We’ve seen other cases, going back to Georgia for example, Judge Melton when he had that first teleconference, no one thought they had an option to mute the audience. So, there were people who were kind of chiming off in the middle of the discussion. We saw it happen in California too where you could hear the audience talking in the background. Somebody questioning one of the attorneys like, “This guy’s an idiot.” And the judge was like, “That’s not appropriate.” But they’ve since fixed it. Should it happen again they implemented the mute button. So, I do think people are appreciating, the ease of access is of course they’re getting use to this. There is discussion about potentially implementing some of these changes long term to what extent it’s still a little bit early in that Georgia is something that we’ll be looking to discuss after they get the courts back open again from what we’ve been hearing but that’s kind of where things stand at the moment.
James: Very good summary, Nate. Thank you for that. I bet that’s going to track along the regular innovation adoption or technology adoption curve you’re going to have early adopters and laggards and things like that, but I suspect that it is here for a while. But probably forever to say that there’s going to be virtual as a component option. Now you also said that one court ran a tight ship. I’ve moderated us beyond an hour, so my apologies for that. We’re a couple minutes over. I didn’t run the tight ship but I did want to not neglect the opportunity to say just a heartfelt thank you panelists for your time and your thoughts and your investment of everything in preparing for this and spending the time with us today, really insightful. We’re very much going to help folks put a lot of this in perspective.
James: So, thank you. Thank you to the all those folks who are participating and attending and certainly reach out to us. If we can be of any further help. Teresa I’ll pass it to you so you can close us out officially. Thank you guys.
Nate: Thank you, James.
Teresa: Yeah lots of thanks.
Ty: Thank you.
Teresa: Lots of thanks to the panelists and for any of our attendees who do want more information, you can reach us at email@example.com. We’re happy to provide the deck to everybody who registered for today and also contact info for our panelists too. If you have follow-up questions or you want to know a little bit more or have a deeper conversation with any of them. So, thank you everyone.
Ty: Thank you.
Teresa: Thank you.
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